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Opinion

Section 498A- THE FINEST SWORD

NEW DELHI: The most sacred institution in this world is the institution of marriage. What makes marriage pure and holy are the promises which the couple makes to each other. A girl leaves her father’s home and comes to her husband’s home.

But what sometimes turns out to be a nightmare for the girl is the cruelty and the harassment which she is made to face at her husband’s house due to the demands of dowry not having been fulfilled. Dowry is a tradition which is being carried on from ages. The greed for more makes a girl suffer and suffer the cruelty which leads often to dowry death or suicide by the married women. To prevent the increasing atrocities against the married women in 1983 through a criminal law amendment, the Parliament came up with Section 498A to be added to the Indian Penal Code. The Section classifies the cruelty against a woman by her husband and in-laws a cognizable, non-compoundable offence for which the imprisonment may extend to three years and also fine.  

In the past three decades, the provision has worked towards achieving its objective by giving the married women an instrument in their hands for their protection.  

But if we try to see at the other side of this Section, it would not be wrong to say that this has given unbridled power to the hands of the married women which is sometimes being misused. The Section is a finest sword in the sense it gives the power to married women to get the husband and his relatives behind the bars for any trivial issues which arise between them. Since this case is cognizable on the complaint being made by the victim, the married women can get any relative of the husband sent to jail just by mentioning his or her name in the complaint to the police. The number of cases which are being filed each year under section 498A has considerably gone up but the conviction rate is very less as compared to the cases being filed.

This provision acts as a sword on the family members of the husband. When a false case is filed against any person, it ruins his/her complete life or certainly disrupts the normal functioning of life. The accused persons are made to suffer or are harassed for no fault of theirs. The old and ailing people or the unmarried whose name has been taken in the complaint are made to fight prolonged legal battles.

The Supreme Court in a recent judgment Rajesh Sharma &ors v. State of U.P. & anr (Criminal appeal no. 1265 of 2017)** also acknowledged the fact that this section is being sometimes misused. There should be no violation of the human rights of the innocent people. Thus in para 19 of the said judgment the Apex Court came up with the guidelines for making arrest in the cases of section 498A.

The guidelines include:-

a)      For every district the District Legal Services Authority would constitute a family welfare Committee with three members (who may be social workers, retired officials and the like) working of which has to be reviewed by the District Judge.

b)      The members of the committee may be given such training as required and such remuneration as is considered appropriate.

c)      Any complaints which are made to the Police or to the Magistrate should be referred to these committees, who shall after interacting with the parties come up with a report to be submitted to the authority from which the case was referred within one month.

d)     The Investigating authority should make use of the report while making an investigation against alleged offence. And no arrest should be made till the report from these committees is received.

e)      The hearing of bail in these cases should be as expeditious as possible and bail should not be denied only for recovery of dowry items.

f)       For persons who are not residing in India, the issuance of red corner notice or the impounding of passport should not be a routine.

g)      The exemption to personal appearance or appearance through video conferencing may be granted.

h)      Further no such directions to apply in the cases of physical injury or death.

Though the Supreme Court has in earlier cases also issued guidelines regarding the arresting procedure in the cases of section 498A but these appear to be more apt given the situation which is prevalent these days.

Through the means of this article it is not in any way denied that in some households still the women are being forced to suffer the pain of harassment and cruelty at the hands of her in-laws but at the same time it is also an undeniable fact that this section is being used by a few married women in a heat of passion or for normal martial disputes and misunderstandings which results in the unnecessary harassment of the innocent. To have a balance in these conflicting interests, guidelines should be there which the Supreme court has made through this case. Further , this section should be made a non-cognizable and a compoundable offence which would increase the scope of conciliation and hence save the institution of marriage.  

(The writer has just completed his LL.M. from NLSIU, Bengaluru and is a budding lawyer.) 

By TIS Staffer
the authorBy TIS Staffer

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